Constantine, K. v. Lenox Instr. Co.

J-A28024-23

2024 PA Super 216

KAREN M. CONSTANTINE, : IN THE SUPERIOR COURT OF

ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA

THOMAS A. CONSTANTINE, :

DECEASED, AND INDIVIDUALLY AS :

WIDOW IN HER OWN RIGHT :

:

Appellant :

:

: No. 2710 EDA 2022

v. :

:

:

LENOX INSTRUMENT COMPANY, :

INC., AND ESTERLINE :

TECHNOLOGIES CORPORATION :

Appeal from the Order Entered September 29, 2022

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 170600672

KAREN M. CONSTANTINE, : IN THE SUPERIOR COURT OF

ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA

THOMAS A. CONSTANTINE, :

DECEASED AND INDIVIDUALLY AS :

WIDOW IN HER OWN RIGHT :

:

:

v. :

: No. 2761 EDA 2022

:

LENOX INSTRUMENT COMPANY, INC. :

AND ESTERLINE TECHNOLOGIES :

CORPORATION :

:

:

APPEAL OF: LENOX INSTRUMENT :

COMPANY, INC. :

Appeal from the Order Entered October 7, 2022

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 170600672

J-A28024-23

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

OPINION BY STABILE, J.: FILED SEPTEMBER 17, 2024

These consolidated appeals arise from asbestos litigation in which the

plaintiffs, Karen M. Constantine, Administratrix of the Estate of Thomas A.

Constantine, deceased, and individually as widow in her own right (referred

to collectively as “Constantine”), sought damages from the related corporate

entities, Lenox Instrument Company, Inc. (Lenox) and Esterline Technologies

Corporation (Esterline). Constantine alleged that the two entities were

negligent in exposing her husband (the decedent) to asbestos at his

workplace. At a non-jury trial before the Court of Common Pleas of

Philadelphia County (trial court), Constantine obtained a final judgment

against Lenox in the amount of $2,327,596.76.1 Lenox now appeals,

challenging the trial court’s denial of several claims in its post-trial motion;

Constantine also cross-appeals the denial of delay damages. For the reasons

below, we affirm the trial court’s order denying Lenox’s post-trial motion and

reverse in part the trial court’s order on delay damages.

A bench trial was held in this matter on February 14, 2022, February

15, 2022, and February 16, 2022. In its 1925(a) opinion, the trial court

summarized the pertinent facts as follows:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 In the related appeal at docket number 2676 EDA 2022, Constantine

appealed the trial court’s order granting the dismissal of Esterline on corporate

veil grounds. The issue in that appeal is not germane to the present cross

appeals between Constantine and Lenox.

-2-

J-A28024-23

In December 2016, [the decedent] was diagnosed with malignant

mesothelioma and passed away as a result on May 14, 2019. [The

decedent] was employed by [Lenox] from January, 1972 through

October, 1981. During that time, Lenox manufactured and sold

heat shields and components of light source products. During his

time with Lenox, [the decedent, according to his testimony,] was

frequently exposed to asbestos laden dust.

****

[The decedent] began working at [Lenox] in January of 1972 as a

clerk and eventually was promoted to designer draftsman, a

position he held until October of 1981. During his employment

Lenox manufactured heat shields for [L]ightsource products which

involved fabrication of materials which resulted in dust. These

heat shields were manufactured with transite boards that

contained asbestos. The heat shields were cut, drilled and milled

on site at Lenox. Each one of these processes created airborne

asbestos laden dust. [The decedent testified that he] was

frequently in close proximity with employees sawing the transite

board, drilling holes in the board, and shaping it through a milling

process. He was also nearby during cleaning of this process which

would make the room dusty. Accordingly, [the decedent]

frequently breathed the dust that was created between 1974 and

1981.

Lenox did not disclose to [the decedent] that the product he was

working with contained asbestos. When working with the transite

board, one employee, Mr. [James Dickson] testified that he was

warned that before he ate or smoked, he needed to clean the dust

produced by his work off of him.

By 1972, evidence that asbestos exposure caused cancer had

been recognized. In June of that year, the Occupational Safety

and Health Administration [OSHA] put regulations into effect

dealing with potential asbestos exposure in the workplace and

required air monitoring tests. Lenox failed to perform these testing

regulations during the course of [the decedent’s] employment.

Weighing the evidence that [the decedent] was exposed to a

cancer causing agent, this Court, acting as fact finder, ruled that

[Lenox] was negligent.

Trial Court 1925(a) Opinion, 3/2/2023, at 3-4.

-3-

J-A28024-23

The trial court entered a verdict in favor of Constantine, and the sum of

$2,218,444.74 was awarded. Of that amount, $818,444.74 was awarded to

the decedent’s estate pursuant to the Survival Act for injuries suffered prior

to the decedent’s death. The decedent’s wife and children received

$700,000.00 pursuant to the Wrongful Death Act. The decedent’s wife was

also awarded an additional $700,000.00 in damages for her loss of

consortium.

Lenox filed a post-trial motion requesting a new trial, or entry of

judgment notwithstanding the verdict (JNOV), as well as the entry of nonsuit.

Echoing its position at trial, Lenox argued that the decedent had not

established the right to relief as a matter of law, and that the verdict was

against the weight of evidence. Lenox contended that it was impossible for

the decedent to have been exposed to asbestos dust on as many occasions as

he had claimed because the heat shields used for the Lightsource were already

pre-fabricated and ready for assembly when delivered, and Lenox lacked the

equipment needed to alter them. See Lenox’s Motion for Post-Trial Relief,

5/23/2022, at 8-14, 27-30. Lenox asserted in the alternative that, even if the

decedent’s claims were credible, Lenox could not be liable because the

decedent’s “bystander exposure” would have been minimal and insufficient to

cause his illness. See id., at 14-19, 29-30.

The post-trial motion also included several renewed challenges to the

trial court’s evidentiary rulings. Lenox had unsuccessfully filed motions in

limine to limit Constantine’s expert witnesses, Dr. Steven Markowitz and Dr.

-4-

J-A28024-23

Evan Alley, from testifying that exposure to asbestos caused the decedent to

develop mesothelioma. See id., at 33-40. Relatedly, Lenox asserted that the

trial court erred in allowing Constantine to prove its liability without presenting

expert testimony on the applicable standard of care that Lenox owed to the

decedent. See id., at 41-44.

As to its own witness, Dr. Brent Kerger, Lenox contended that the trial

court erred in precluding its expert from opining on the issue of causation.

See id., at 44-47. Dr. Kerger, a toxicologist, would have testified as to

alternative causes of asbestos-related illnesses and opined that the decedent

suffered from mesothelioma for reasons other than occupational exposure to

asbestos during his employment with Lenox. See id.

Lenox next raised a constitutional ground in its post-trial motion,

arguing that our Supreme Court’s opinion in Tooey v. AK Steel Corp., 81

A.3d 851 (Pa. 2013), is unconstitutional as applied because it rendered the

Pennsylvania Workers’ Compensation Act (the Act) inapplicable and allowed

Constantine to file a negligence action against Lenox beyond the period

allowed by the Act during the decedent’s period of employment. See id., at

48-50.

The final grounds in Lenox’s post-trial motion were that the trial court

erred in not having the deposition transcripts of Gerald Jacobs, John Lang,

and Robert Dickson read into evidence, and that the trial court erred in

denying Lenox’s motion for the entry of nonsuit. See id., at 50-51. The trial

-5-

J-A28024-23

court entered an order denying the post-trial motion in its entirety on

September 29, 2022.

Constantine filed a petition for delay damages in the amount of

$392,896.41. Lenox filed an opposition to the petition, to which Constantine

filed a reply. Lenox then filed a sur-reply, and argument on Lenox’s post-trial

motions and Constantine’s petition for delay damages was heard on

September 7, 2022. Constantine’s petition for delay damages was granted in

part and denied in part on October 7, 2022, resulting in an increase of

$109,152.02 to the judgment, and a final amount of $2,327,596.76.

Constantine filed a praecipe for final judgment on October 18, 2022, and

judgment was entered on that same date.

Lenox and Constantine each timely filed their respective cross appeals,

and the trial court entered a 1925(a) opinion giving the reasons why its orders

should be affirmed. See Trial Court 1925(a) Opinion, 3/2/2023. Lenox, the

appellant at docket number 2761 EDA 2022, now raises a number of issues in

its brief, which we have condensed and reordered as follows:

1. Whether the trial court abused its discretion in ruling that the

verdict was not against the weight of the evidence;

2. Whether Lenox’s motion for nonsuit was properly denied;

3. Whether the standard of care evidence supporting

Constantine’s negligence claim was legally sufficient;

4. Whether the expert opinions of Dr. Brent D. Kerger regarding

medical causation were properly excluded;

-6-

J-A28024-23

5. Whether the trial court erred in allowing Dr. Gerald Markowitz

to testify as an expert about the history of asbestos;

6. Whether the trial court erred in allowing Dr. Steven Markowitz

to opine as an expert on the specific medical cause of the

decedent’s illness;

7. Whether the trial court erred in allowing Dr. Evan Alley to

opine as an expert on the specific medical cause of the decedent’s

illness;

8. Whether the holding of Tooey v. AK Steel Corp., 81 A. 3d

851 (Pa. 2013), is unconstitutional, as applied in this case;

9. Whether the trial court erred in instructing the parties to

submit transcripts upon which the parties relied instead of having

the transcripts read into the record during trial; and

10. Whether the trial court erred in awarding damages in excess

of the amounts given by Constantine’s expert witness on

damages.

See Brief of Appellant/Cross-Appellee, at 8-11. 2

Constantine, in turn, raises the following issues in her cross-appeal,

docketed at number 2710 EDA 2022, which we have copied below verbatim:

Whether the trial judge committed an error of law and

misinterpreted Rule 238 of the Pennsylvania Rules of Civil

Procedure and/or abused his discretion by denying, in part,

Constantine’s Petition for Delay Damages, in the total amount of

$283,744.39, for the following periods and amounts:

1. June 20, 2018 to December 31, 2018 ($64,852.26), when

Constantine allegedly caused delays in adding [Esterline] as a

party to the action;

____________________________________________

2 To the extent Lenox raised or attempted to raise any other issues, we find

that they are subsumed within the enumerated grounds for relief summarized

above.

-7-

J-A28024-23

2. December 11, 2019 to November 21, 2020 ($121,522.18),

when the case was moved into deferred status in order to allow

Constantine to seek an interlocutory appeal; and

3. The years 2021 and 2022 ($97,369.95), when Constantine’s

alleged delays caused the case to run into further delays from the

COVID-19 pandemic.

Brief of Appellee/Cross Appellant, at 5-6 (suggested answers omitted).

Each of the above issues are addressed in turn below, beginning with

Lenox’s first claim that the trial court abused its discretion in denying a new

trial and finding that the verdict was not contrary to the weight of the

evidence. According to Lenox, the evidence established that, at most, the

decedent was exposed to a de minimus amount of asbestos at Lenox’s facility

where he worked, and that, as a matter of law, Lenox could not be held liable.

Lenox discounts the decedent’s testimony that he was regularly exposed to

asbestos dust by emphasizing the conflicting testimony of its witnesses that

the fabrication of Lightsource parts took place off-site. See Appellant’s Brief,

at 46-53.

On review of a ruling denying a weight of evidence claim, the following

standard applies:

Appellate review of a weight claim is a review of the [trial court's]

exercise of discretion, not of the underlying question of whether

the verdict is against the weight of the evidence. Because the trial

judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration

to the findings and reasons advanced by the trial judge when

reviewing a trial court's determination that the verdict is against

the weight of the evidence. One of the least assailable reasons for

granting or denying a new trial is the lower court's conviction that

the verdict was or was not against the weight of the evidence and

that a new trial should be granted in the interest of justice.

-8-

J-A28024-23

The factfinder is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. The trial court

may award a judgment notwithstanding the verdict or a new trial

only when the jury's verdict is so contrary to the evidence as to

shock one's sense of justice. In determining whether this standard

has been met, appellate review is limited to whether the trial

judge's discretion was properly exercised, and relief will only be

granted where the facts and inferences of record disclose a

palpable abuse of discretion. When a fact finder's verdict is so

opposed to the demonstrative facts that looking at the verdict, the

mind stands baffled, the intellect searches in vain for cause and

effect, and reason rebels against the bizarre and erratic

conclusion, it can be said that the verdict is shocking.

However, [i]f there is any support in the record for the trial court's

decision to deny the appellant's motion for a new trial based on

weight of the evidence, then we must affirm. An appellant is not

entitled to a new trial where the evidence presented was

conflicting and the fact-finder could have decided in favor of either

party.

Spencer v. Johnson, 249 A.3d 529, 566 (Pa. Super. 2021) (quoting

McFeeley v. Shah, 226 A.3d 582, 594 (Pa. Super. 2020)).

Here, we find that the trial court did not abuse its discretion because

the verdict was not so contrary to the weight of the evidence that it would

shock one’s sense of justice. One count of negligence was alleged against

Lenox. The elements of negligence are:

(1) a duty or obligation recognized by the law that requires an

actor to conform his actions to a standard of conduct for the

protection of others against unreasonable risks; (2) failure on the

part of the defendant to conform to that standard of conduct, i.e.,

a breach of duty; (3) a reasonably close causal connection

between the breach of duty and the injury sustained; and (4)

actual loss or damages that result from the breach.

Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 654 (Pa. Super.

2002).

-9-

J-A28024-23

“To establish a prima facie case of negligence, a plaintiff must produce

sufficient facts to show that the defendant's negligence was both the cause-

in-fact and the legal, or proximate, cause of her injuries.” Straw v. Fair, 187

A.3d 966, 993 (Pa. Super. 2018); see also First v. Zem Zem Temple, 686

A.2d 18, n.2 (Pa. Super. 1996) (citing Reilly v. Tiergarten, Inc., 633 A.2d

208 (Pa. 1993)). Factual cause (also referred to as cause-in-fact) is

established where it is shown that the plaintiff’s injuries would not have

occurred “but for” the defendant’s alleged conduct. Straw, 187 A.3d at 993.

“To establish proximate [or legal] causation, a plaintiff must adduce

evidence to show that the defendant’s act was a substantial factor in bringing

about the plaintiff’s harm.” Rost v. Ford Motor Co., 151 A.3d 1032, 1049

(Pa. 2016).3 Although factual and legal causation still are discussed in our

case law when addressing causation, to avoid jury confusion, current standard

jury instructions suggest that juries be instructed only as to factual cause, as

the standard instruction on factual cause now covers both concepts of legal

and factual causation. See Pa.SSJI (Civ.) 13.20 (Factual Cause).

In an asbestos case, a plaintiff must show that his injuries were

proximately caused by the product of a particular manufacturer or supplier,

____________________________________________

3 “[L]egal cause frequently does not follow as far as cause-in-fact would lead.”

Whitner v. Von Hintz, 263 A.2d 889, 895 (Pa. 1970). “Legal or proximate

causation involves a determination that the nexus between the wrongful acts

(or omissions) and the injury sustained is of such a nature that it is socially

and economically desirable to hold the wrongdoer liable.” First v. Zem Zem

Temple, 686 A.2d 18, 21 n.2 (Pa. Super. 1996).

- 10 -

J-A28024-23

that he inhaled asbestos fibers shed by that product, and that he did so in the

workplace. See Eckenrod v. GAF Corp., 544 A.2d 50, 53 (Pa. Super. 1988).

For the purposes of proving the causation element of negligence in an

asbestos case, it is not enough for a plaintiff to demonstrate that asbestos

was merely present – it must be shown that exposure to it was “frequent,

regular, and proximate.” See Gregg v. V-J Auto Parts, Co., 943 A.2d 216,

227 (Pa. 2007) (adopting the “frequency, regularity, and proximity test” as

the standard for proving that asbestos is a substantial factor in causing

damages).

However, it is not necessary for a plaintiff to specify the exact level or

duration of asbestos exposure. See Andaloro v. Armstrong World

Industries, Inc., 799 A.2d 71, 86 (Pa. Super. 2002) (quoting Coward v.

Owens-Corning, 729 A.2d 614, 622-23 (Pa. Super. 1999)); Fisher v. J.A.

Sexauer, 53 A.3d 771, 775 (Pa. Super. 2012) (same). The evidence of

frequency, regularity, and proximity to the substance may take the form of

direct or circumstantial evidence, “or a combination of both categories of

evidence.” See Gregg, 943 A.2d at 226.

As to the duty of care, this Court has recognized that in the context of

the workplace, an employer has a “heightened duty” to employees:

As employers, Appellees owed their employees, including [the

plaintiff], a duty to protect them not only from known dangers,

but also from those which might be discovered with reasonable

care. Moreover, Appellees had a duty to their employees to create

and maintain a safe work environment, conforming to the conduct

of an ordinary, prudent person who has special knowledge as a

- 11 -

J-A28024-23

person experienced in the business. This includes taking steps to

protect their employees from conditions likely to cause them

harm. Additionally, Appellees were required to have knowledge of

generally known scientific discoveries, to take care to ascertain

facts which would indicate danger to their employees, and to take

appropriate action if discovered.

Shellenberger v. Kreider Farms, 288 A.3d 898, 910 (Pa. Super. 2023)

(internal citations omitted).

In this case, the decedent testified that he was frequently, regularly,

and proximately exposed to asbestos dust for several years while employed

by Lenox from 1974 to 1981. It is undisputed that Lenox manufactured a

product during that span which contained asbestos (the Lightsource), and that

the decedent designed it without knowing that the transite board used for the

device’s heat shield was partly composed of asbestos. The decedent testified

that Lenox fabricated parts for the Lightsource onsite, including the transite

board, so that it could be assembled at the Lenox premises. See Deposition

of Thomas Constantine, 2/1/2019, at 14, 19-21, 90.

The decedent also described the fabrication process, explaining how co-

workers would “cut to size” transite boards and then take them “to the

machine shop to put the holes in, mill out the edges.” Id., at 91. The

machinery used included a “band saw” and a “power hacksaw.” Id., at 95.

Additionally, the transite boards had to be drilled in three places – “Two for

screws, and one large enough to let the light through.” Id., at 65. The

decedent testified that he personally observed this process on a regular basis

“from an arm’s length away” between 1974 and 1981, during which time he

- 12 -

J-A28024-23

and his co-workers would inhale the resulting dust in the surrounding air. See

id., at 96, 98.

One of the decedent’s co-workers, James Dickson, partly corroborated

the decedent’s testimony in this regard. Dickson testified in his deposition in

2019 that, as of the date he was deposed, he had been continuously employed

by Lenox as a machinist since 1974. See Deposition of James Dickson,

4/1/2019, at 8-9. He recalled two occasions during the period of Constantine’s

employment in which he modified transite boards.

On one of those two occasions, Dickson had difficulty when trying to

enlarge a hole in a transite board. Dickson consulted the foreman, who then

took some pieces of the board to the office of one of the Lenox managers at

the premises, Paul Lang. See id., at 24. When the foreman returned, he

immediately told Dickson to stop working and clean himself off with water and

an air hose. He was also advised not to eat or smoke until he had thoroughly

cleaned off the debris caused from the drilling. Id., at 37-39. This was the

only time in his four decades of Dickson’s employment with Lenox that any

such precautions had been taken. See id., at 39.

Dr. Steven Markowitz and Dr. Evan Alley each testified as to causation.

As the decedent’s treating oncologist, Dr. Alley was able to observe his

- 13 -

J-A28024-23

condition and conclude that the decedent suffered from mesothelioma, and

that this illness was consistent with his reported exposure to asbestos. 4

Dr. Steven Markowitz testified at trial that he was a medical doctor

board-certified in internal and preventative medicine. He had a subspeciality

in the field of occupational medicine, which involves the identification of

hazardous materials in the workplace and preventing employees from being

exposed to them.

Dr. Markowitz stated that, due to his background in occupational

medicine, he was familiar with transite and its association with asbestos. He

testified that exposure to “background,” or “ambient” levels of asbestos in the

open air or general environment are unlikely to lead to the development of

mesothelioma. See N.T. Trial, 2/15/2022 (morning session), at 37. However,

where a patient diagnosed with mesothelioma has reported prolonged or

frequent exposure to asbestos in a workplace environment near the source

where the substance is released into the air, “then the chances of that

exposure producing the mesothelioma are very high.” Id., at 44-45. Dr.

Markowitz explained that “[t]here are very few other known causes of

mesothelioma,” and none of them were relevant to the decedent. Id., at 64.

In Dr. Markowitz’s opinion, occupational exposure to asbestos was the

cause of the decedent’s mesothelioma:

____________________________________________

4 Lenox has challenged the admissibility of expert opinions by these witnesses

on the issue of causation. Those claims are addressed separately below.

- 14 -

J-A28024-23

The basis of that opinion is understanding what [the decedent] did

at that workplace, the detail he described, his exposure to

asbestos, the whole of his outpatient history, the malignant

mesothelioma through the medical records and the details

regarding his exposure, which, in my view, were such they

provided enough documentation of sufficient exposure to cause

malignant mesothelioma.

I tried to eliminate other possible exposures to asbestos. I didn’t

see any other exposure.

There are very few other known causes of mesothelioma. A few

other mineral fibers, radiation therapy can do it for certain

cancers. None of them were relevant to him.

So to me, this was a case for someone who identified years of

frequent exposure to airborne asbestos by working in close

proximity or being in close proximity to where the work was done.

Id., at 64.

As to the duty of care that Lenox owed to the decedent, another expert,

Dr. Gerald Markowitz, explained that publicly available materials which pre-

dated the period of the decedent’s employment had advised of the dangers

posed by the inhalation of asbestos dust. See N.T. Trial, 2/15/2022

(afternoon session), at 19-35; see also Trial Court 1925(a) Opinion,

3/2/2023, at 8-9 (summarizing history of academic scholarship on

occupational exposure to asbestos).

In particular, OSHA had by 1972 implemented regulations requiring

periodic air monitoring to prevent workers from inhaling air contaminated with

asbestos. See N.T. Trial, 2/15/2022 (afternoon session), at 33. Dr.

Markowitz testified that, after reviewing the relevant records and depositions

- 15 -

J-A28024-23

taken in this case, he saw no indication that Lenox had complied with OSHA’s

mandates. See id., at 59-61.

Based on this evidence, we do not find that the verdict is so contrary to

the evidence as to shock one's sense of justice, or that a new trial is needed

to give Lenox another chance to prevail. The trial court, sitting as the finder-

of-fact, heard evidence that Lenox breached a duty of care to the decedent by

exposing him to asbestos, and that this exposure was a factual and proximate

cause of the decedent’s injures. The evidence was sufficient for the fact-finder

to conclude that occupational exposure to asbestos was a substantial factor in

causing the decedent to develop mesothelioma. Although Lenox disputed the

elements of causation by introducing evidence that it rarely, if ever, modified

or fabricated the transite boards at its facilities, and that the levels of asbestos

in the air reported by the decedent would not have been concentrated enough

to harm him,5 it was the role of the trial court, sitting as the finder-of-fact, to

weigh conflicting evidence and assess the credibility of witnesses.

The trial court credited the account of the decedent and his expert

witnesses regarding the duties Lenox owed the decedent, and the causes of

his illness. The trial court found that Lenox either should have known of the

____________________________________________

5 Lenox presented the testimony of several Lenox employees who recalled that

the transite boards arrived to Lenox pre-cut and pre-drilled, and that they

were not modified onsite. See e.g., Deposition of Gerald Jacobs, 10/18/2019,

at 41, 44. Lenox further presented evidence that it did not have the proper

equipment to drill or saw the transite boards.

- 16 -

J-A28024-23

dangers that asbestos posed, or in fact did know, as evidenced by the

experiences recounted by the decedent’s co-worker, Dickson. As the trial

court’s findings and credibility determinations are supported by the record, it

did not abuse its discretion in denying the weight of evidence claim in Lenox’s

post-trial motion.

Lenox’s second claim is that the trial court erred in denying its motion

for compulsory nonsuit. “A nonsuit is proper only if the [trier-of-fact], viewing

the evidence and all reasonable inferences arising from it in the light most

favorable to the plaintiff, could not reasonably conclude that the elements of

the cause of action had been established.” Printed Image of York, Inc. v.

Mifflin Press, Ltd., 133 A.3d 55, 59 (Pa. Super. 2016) (citation omitted). “A

compulsory nonsuit can be granted only at the close of plaintiff’s case and

before the defendant presents any evidence.” Burns v. City of Phila., 504

A.2d 1321, 1325 (Pa. Super. 1986).

However, if the defendant elects to proceed to trial and presents a

defense after nonsuit has been denied, then the trial court's denial of nonsuit

becomes moot. See Whitaker v. Frankford Hosp. of City of Phila., 984

A.2d 512, 517 (Pa. Super. 2009). Once a jury verdict in favor of Constantine

was entered, the issue became whether the trial court later erred in failing to

grant Lenox judgment notwithstanding the verdict. Id. In this case, after

nonsuit was denied, Lenox went forward with the trial and presented a

defense. Accordingly, the nonsuit issue became moot for purposes of

- 17 -

J-A28024-23

appellate review. See id.; see also Northeast Fence & Iron Works, Inc.

v. Murphy Quigley Co., Inc., 933 A.2d 664, 668 (Pa. Super. 2007) (same).

Lenox’s third claim is that the evidence was legally insufficient because

Constantine did not present expert testimony on the applicable duty, or

standard of care, that an employer in Lenox’s industry owed to its employees.

See Appellant’s Brief, at 54-58. The admissibility of expert testimony is an

evidentiary issue that is subject to the discretion of the trial court, and on

review, a ruling on that subject will only be reversed to correct an abuse of

discretion. See Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003).

The premise of Lenox’s argument is flawed because, in fact, Constantine

presented the expert testimony of Dr. Gerald Markowitz, who described at

length the duty of care owed to the decedent based on the medical

publications and work-safety regulations that were publicly available at the

time of the decedent’s employment with Lenox.6

Moreover, in another asbestos case with similar facts, this same witness

(Dr. Gerald Markowitz) testified as an expert on the identical subject. In that

____________________________________________

6 Lenox has relied on caselaw which provides that "expert testimony is

required to establish professional negligence where the determination of

whether the actions were negligent is beyond the understanding of the

ordinary person." Cipriani v. Sun Pipe Line Co., 574 A.2d 706, 715 (Pa.

1990); Storm v. Golden, 538 A.2d 61, 65 (Pa. Super. 1988). However,

Constantine did not allege, much less attempt to prove, a claim of professional

negligence.

- 18 -

J-A28024-23

case, Shellenberger, this Court held that the evidence of the defendant’s

duty of care was legally sufficient:

Appellant presented evidence in the form of expert reports, as well

as medical journals and publications from the Pennsylvania

Department of Labor and the Pennsylvania Department of Health,

establishing that the dangers of asbestos were generally known in

the 1960s. For instance, Appellant produced an expert report

prepared by Gerald E. Markowitz, Ph.D., and David Rosner,

Ph.D., in which they conducted a historical review of the

relevant medical, scientific, and industrial literature, as

well as other publicly available information, to determine,

inter alia, when it was known and therefore knowable that

breathing dust containing asbestos could cause cancer.

Answer to MSJ at Exhibit M (“Expert Report”). Markowitz and

Rosner concluded that, beginning in the 1930s, there was a

suspected link between breathing asbestos dust and cancer, and

that the link was acknowledged by many medical researchers by

the mid-1940s. By the early 1960s, they reported that the

range of diseases and cancers associated with asbestos

exposure, including mesothelioma, were widely

acknowledged and documented. In July 1964, the

Pennsylvania Department of Health's Occupational Division issued

a hygienic information guide regarding asbestos, in which it noted

the growing accumulation of evidence that exposure to asbestos

fibers may cause cancer of the lung, and in the fall of 1965, it

warned of the link to lung cancer and mesothelioma from

occupational exposure to airborne asbestos dust.

Significantly, Appellant also pointed out that in June 1972, the

same month that Kreider Farms’ dairy processing plant began

operating, [OSHA] enacted its regulations regarding

workplace exposures to asbestos. These regulations

required employers, within six months of their publication,

to begin monitoring any place of employment where

asbestos fibers were released to determine if each of its

employee's exposure to asbestos fibers was below the

allowable limit. The regulations further established methods of

compliance, including the adoption of safer work practices, the

provision of personal protection equipment and changing rooms,

posting caution signs in areas where airborne concentrations of

asbestos fibers may exceed the permissible exposure limits, and

imposing restrictions on the disposal of asbestos waste.

- 19 -

J-A28024-23

Appellant asserts that despite these federally mandated

requirements, Appellees failed to monitor the asbestos

levels at the plant and failed to implement any procedures

to protect their employees from exposure to asbestos.

We believe the foregoing evidence viewed in a light most

favorable to Appellant would enable a reasonable jury to

conclude that Appellees should have known of the dangers of

asbestos and the risk that the asbestos-containing boiler

components posed to Mr. Shellenberger's health, and that

Appellees therefore had a duty to exercise reasonable care

to protect him from said hazardous conditions.

Shellenberger, 288 A.3d at 910-11 (emphases added; internal citations

omitted).

Here, as in Shellenberger, there was evidence establishing that Lenox

either knew or should have known of the dangers of asbestos, and that Lenox

had a federally mandated duty “to monitor the asbestos levels at the plant

and failed to implement any procedures to protect” its employees from that

risk. See id.

Lenox has attempted to distinguish Shellenberger and render it non-

controlling here. Although Dr. Gerald Markowitz has given essentially identical

testimony in this case and in Shellenberger regarding the standard of care

and testing regulations in effect at the relevant times, Lenox nevertheless

argues that the witness’s opinion was still improper because he lacked a

background in the manufacturing process for borescopes or other optical

instruments.

This distinction is unpersuasive. Dr. Gerald Markowitz testified that the

safety standards and regulations he discussed were binding on Lenox during

- 20 -

J-A28024-23

the period of the decedent’s employment. Lenox has presented no evidence

that manufacturers of optical instruments were excepted from OSHA

regulations at that time. Thus, the trial court did not err in denying Lenox’s

claim that Constantine presented insufficient evidence concerning the nature

of the duty of care owed to the decedent.

Lenox’s fourth claim is that the trial court abused its discretion in

precluding the opinions of a toxicologist, Dr. Brent D. Kerger, regarding the

cause of the decedent’s mesothelioma. At trial, Lenox sought to admit Dr.

Kerger’s opinion that the decedent could not have developed mesothelioma at

his workplace because he had only been exposed to a de minimis dose of

asbestos. In his report, Dr. Kerger stated that the decedent’s illness must

have resulted from alternative causes, such as his age and “genetic factors.”

The trial court reasoned that although Dr. Kerger could testify generally

on the effect of asbestos on the human body, he lacked the expertise to

diagnose the specific cause of the decedent’s mesothelioma because he was

not a medical doctor, and he had no experience in the diagnosis or treatment

of patients. Further, the trial court found that there was no evidence to

support a diagnosis of an alternative cause. Dr. Kerger was therefore free to

opine generally on whether the reported levels of the decedent’s exposure to

asbestos could cause mesothelioma, but he was precluded from opining on

the specific, or medical cause of the disease. See N.T. Trial, 2/16/2022

- 21 -

J-A28024-23

(morning session), at 5; N.T. Trial, 2/16/2022 (afternoon session), at 9; see

also Trial Court 1925(a) Opinion, 3/2/2023, at 16.

Under Pa.R.E. 702, a witness may testify in the form of an opinion as

long as she is qualified to do so “by knowledge, skill, experience, training, or

education[.]” The rule makes such opinions admissible if:

(a) the expert's scientific, technical, or other specialized

knowledge is beyond that possessed by the average layperson;

(b) the expert's scientific, technical, or otherwise specialized

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue; and

(c) the expert's methodology is generally accepted in the relevant

field.

Pa.R.E. 702.

“[I]n the context of legal proceedings, if a witness has any reasonable

pretension to specialized knowledge on the relevant subject, he may be

offered as an expert witness, and the weight to be given his testimony is for

the trier of fact to determine.” Freed v. Geisinger Med. Ctr., 971 A.2d 1202,

1210 (Pa. 2009) (emphasis in original). A trial court’s ruling on the

admissibility of an expert’s opinion is subject to an abuse of discretion

standard of review. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 31 (Pa.

2012).

Here, Dr. Kerger was tendered as an expert in the field of toxicology,

which is defined as a “branch of medicine that concerns poisons, their effects,

their recognition, their antidotes, and generally the diagnosis and therapeutics

- 22 -

J-A28024-23

of poisoning[.]” TOXICOLOGY, Black's Law Dictionary (12th ed. 2024). Lenox

sought to have Dr. Kerger opine specifically at trial that (a) the decedent’s

exposure to asbestos at the Lenox premises did not cause his mesothelioma,

and (b) that the decedent’s illness possibly resulted from numerous other

causes. It was undisputed that Dr. Kerger had no experience as a medical

doctor or as a pathologist. He had never personally examined the decedent,

or any other patient, for that matter. Dr. Kerger was allowed to testify as an

expert about general causation, but he was not allowed to opine as to specific

causation or otherwise diagnose the cause of the decedent’s mesothelioma.

In its briefing, Lenox has been unable to refer to a case in which a non-

medical doctor with no background or practical experience in the treatment or

diagnosis of patients was permitted to opine at trial as to the specific cause of

a plaintiff’s illness. Lenox instead cites to several cases in which a non-medical

doctor was permitted to testify generally on causation, which is exactly what

Dr. Kerger was allowed to do in this case:

[Counsel]: Dr. Kerger, do you have an opinion as to whether

any of the cutting, drilling or milling of the heat shield in

question was sufficient to cause mesothelioma in general?

[Dr. Kerger]: As I explained, I believe that the upper bound dose

estimates that I came up with both based on the testing of the

transite material at issue and applying conservative assumptions

to existing literature on cutting of transite board material, that

the dose received by [the decedent] would have been

nominal. Far lower than what background would be in terms of

background outdoor air, inhalation and also well below the

thresholds for increased risk from mesothelioma among

automotive mechanics who do and have received

- 23 -

J-A28024-23

appreciable above background exposures to chrysotile

fibers.

N.T. Trial, 2/16/2022 (afternoon session), at 9-10 (emphases added).

The two chief cases Lenox discusses in its brief, Betz, 44 A.3d 27, and

Pratt v. Stein, 444 A.2d 674, 706 (Pa. Super. 1982), did not compel the trial

court to allow Dr. Kerger to opine on the specific, or medical cause, of the

decedent’s illness.

In Betz, the pertinent issue was whether the expert opinion of an

environmental toxicologist could be used to rebut the methodology of a

pathologist who had “given a broad-scale opinion on causation applicable to

anyone inhaling a single asbestos fiber above background exposure levels.”

44 A.3d at 54. Our Supreme Court held that the trial court did not abuse its

discretion in allowing the toxicologist to do so. See id., at 55. The Court

found that the expert was qualified to opine on general causation because that

subject was subsumed by the expert’s interdisciplinary field. See id.

In Pratt, a pharmacologist was permitted to opine as an expert that a

drug administered to the plaintiff to treat a post-operative infection was toxic,

and that safer drugs were available. The defendant had argued that the expert

was not qualified to render an opinion on that subject because he had no

experience in orthopedic surgery or in the treatment of such infections. This

Court rejected the argument because pharmacologists specialize in “the study

of various medications, their origin, nature, properties, and effects upon living

organisms.” Pratt, 444 A.2d at 706. The expert’s background qualified the

- 24 -

J-A28024-23

witness to render an opinion generally on the effect that a particular drug may

have on the human body despite that the expert did not practice medicine.

See id.

Although Lenox has presented Betz or Pratt as precedent in which a

non-medical doctor with no practical or clinical experience with patients was

allowed to opine on the specific, medical cause of a plaintiff’s injury, an expert

did not testify to that effect in either case. The same is true in other cases

cited by Lenox for that proposition. See e.g., McClain ex rel. Thomas v.

Welker, 761 A.2d 155, 157-58 (Pa. Super. 2000) (holding that the trial court

erred in precluding an expert with a Ph.D. in neuroscience and psychobiology

from opining on causal relationship between brain dysfunction and toxins

where expert “maintain[ed] a clinical practice” and “examine[d] patients”

suffering from various cognitive disorders); Freed, 971 A.2d at 1210 (holding

that an experienced nurse who routinely diagnosed “human responses to

actual or potential health problems” was qualified to opine as an expert

regarding medical causation); Simmons v. Mullen, 331 A.2d 892, 898 (Pa.

Super. 1974) (holding that opinion testimony regarding specific causation by

a non-medical doctor, a psychologist, was improper because the record only

- 25 -

J-A28024-23

established his expertise in identifying a brain injury, but not that he was “able

to ascertain causation[.]”).7

In this Court’s own review of relevant controlling authorities on this

topic, we too have been unable to find a case that persuades us that the trial

court abused its discretion in limiting Dr. Kerger’s expert opinions to those

concerning general causation. Rather, the record supports the trial court’s

ruling that Dr. Kerger’s lack of experience in treating and diagnosing patients

made it improper for him to give an expert opinion diagnosing the specific,

medical cause of the decedent’s mesothelioma or offering speculative

alternative causes for it. Thus, no relief is due on this claim. 8

____________________________________________

7 Our finding that the trial court acted within its discretion in precluding Dr.

Kerger’s diagnostic opinion on specific, or medical, causation is further

supported by courts in other jurisdictions which came to the same conclusion

under analogous circumstances. See e.g., In re Silicone Gel Breast

Implants Prod. Liability Litig., 318 F. Supp. 2d 879, 907 (C.D. Cal. 2004)

(“Given these qualifications [in the field of toxicology] – and the absence of

evidence that [the expert] has any experience making diagnoses in humans –

the Court finds . . . that [the witness] is qualified to render an opinion about

general causation, but that he is not qualified to opine on specific causation.”);

Landrigan v. Celotex Corp., 605 A.2d 1079, 1089 (N.J. 1992) (holding that

non-physician scientists may be qualified to “testify on matters of individual

causation [in an asbestos case] when their training and experience indicate

sufficient expertise,” such as “practical experience” and “clinical experience”

in the diagnosis of patients); Hagen v. Celotex Corp., 816 S.W.2d 667, 675

(Mo. 1991) (upholding trial court’s order allowing toxicologist “to give an

opinion as to whether asbestos constitutes the health hazard” but precluding

him from testifying “to the opinion as to the cause of the cancer or anything

further than that because he is not a medical doctor.”).

8With respect to Dr. Kerger’s excluded testimony that the decedent’s

mesothelioma resulted from alternative causes, we once more find that the

(Footnote Continued Next Page)

- 26 -

J-A28024-23

Lenox’s fifth claim is that the trial court erred in allowing Dr. Gerald

Markowitz to opine as an expert regarding Lenox’s standard of care because

(1) he did not rely on any scientific, technical, or other specialized knowledge

about that subject, and (2) he did not satisfy the requirements of Frye in

applying accepted scientific methodology in reaching his conclusions. See

Appellant’s Brief, at 66-68.

In our analysis of Lenox’s prior claim, we noted that Pa.R.E. 702 controls

the admissibility of expert opinions. Under that rule, a witness may testify in

the form of an expert opinion as long as she is qualified to do so “by

knowledge, skill, experience, training, or education[.]” A witness is qualified

as an expert if their “scientific, technical, or other specialized knowledge is

beyond that possessed by the average layperson,” and “the expert's scientific,

technical, or otherwise specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue[.]” Pa.R.E. 702(a)-

(b).

____________________________________________

trial court did not abuse its discretion. “While an expert’s opinion need not be

based on absolute certainty, an opinion based on mere possibilities is not

competent evidence.” Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super.

2003). An expert’s opinion “cannot be based solely upon conjecture or

surmise” and the expert’s “assumptions must be based upon such facts as the

jury would be warranted in finding from the evidence.” Pa.R.E. 703. In the

present case, Dr. Kerger offered mere “conjecture” regarding possible

alternative causes, so the trial court did not abuse its discretion in precluding

such testimony on that basis.

- 27 -

J-A28024-23

Where an expert’s opinion is derived from novel scientific evidence, the

Frye test requires the expert’s methodology to be “generally accepted in the

relevant field.” Pa.R.E. 702(c). “[A] Frye analysis is not triggered every time

science enters the courtroom; it only applies when an expert seeks to

introduce novel scientific evidence.” Commonwealth v. Dengler, 843 A.2d

1241, 1243 (Pa. Super. 2004). A Frye hearing is only “warranted when a trial

judge has articulable grounds to believe that an expert witness has not applied

accepted scientific methodology in a conventional fashion in reaching his or

her conclusions.” Betz, 44 A.3d at 53.

In the present case, we discern no error on the part of the trial court in

admitting the expert opinions of Dr. Gerald Markowitz. Constantine proffered

this witness as an expert in the history of occupational health and public health

with a special interest in the history of health issues pertaining to asbestos.

He has taught and published in this field for many years. His testimony

consisted of a historical review of the medical, scientific, industrial hygiene

and industrial literature. Further, as Lenox recognizes, Dr. Gerald Markowitz

relied on publicly available literature, as well as the implementation of federal

OSHA regulations, which illustrated the general awareness of the dangers that

asbestos posed as far back as the 1920’s, and certainly by the 1970’s.

With his academic background, there is no question that Dr. Gerald

Markowitz possessed “scientific, technical, or other specialized knowledge” in

his field beyond that of the average layperson, satisfying Pa.R.E. 702(a).

- 28 -

J-A28024-23

Further, there is no doubt that his specialized knowledge would help the trier

of fact understand the evidence and determine a fact in issue – whether Lenox

knew or should have known about the health hazards associated with asbestos

during the period of the decedent’s employment. Dr. Gerald Markowitz’s

testimony therefore satisfied Pa.R.E. 702(b). See Freed, 971 A.2d at 1210;

Shellenberger, 288 A.3d at 910.

Lenox’s assertion of a Frye error under Pa.R.E. 702(c) is likewise

unavailing. There was nothing novel about Dr. Gerald Markowitz’s

methodology. He simply reviewed decades’ worth of historical scholarship on

occupational exposure to asbestos and opined on the extent to which that

danger would be generally known at the times relevant to this case. Frye

was therefore inapplicable, and the trial court therefore did not abuse its

discretion in admitting Dr. Gerald Markowitz’s testimony.

Lenox’s sixth claim is that the trial court erred in allowing Dr. Steven

Markowitz to offer an expert opinion on the subject of causation. The specific

contention is that this expert’s diagnostic opinion linking asbestos exposure at

the decedent’s workplace to his development of mesothelioma should have

been excluded because it was established at trial that the decedent was

exposed to only a trivial amount of airborne asbestos dust.

We find no merit in this claim, as it is, in substance, a disagreement

with the trial court’s credibility determinations. The decedent testified that,

over a period of several years, the fabrication of transite boards caused him

- 29 -

J-A28024-23

to inhale dust containing asbestos fibers. If believed, this was “regular,

frequent, and proximate” contact with the substance that could constitute a

substantial factor. See Eckenrod, 544 A.2d at 53; see also Gregg, 943

A.2d at 227.

Dr. Steven Markowitz was indisputably qualified to opine on the causal

link between an individual’s reported inhalation of asbestos fibers and the

probability that it would lead to mesothelioma. Dr. Markowitz expressly relied

on the decedent’s account when opining that his occupational exposure to

asbestos was the medical cause of his illness. Since there is evidence in the

record that supports the trial court’s credibility determination with respect to

the decedent’s reported exposure, and the witness had the requisite medical

and scientific expertise, the trial court did not abuse its discretion in admitting

Dr. Markowitz’s diagnostic opinion.

Lenox’s seventh claim is that the trial court erred allowing Dr. Evan Alley

to testify as an expert on the subject of causation.

Dr. Alley was the decedent’s treating oncologist who specialized in the

diagnosis, care, and treatment of mesothelioma. As such, he was clearly

qualified to testify as an expert in those fields. In his deposition testimony,

which was admitted at trial, he primarily testified about the diagnosis and

treatment of the illness.

Lenox’s claim of error is that Dr. Alley was permitted to answer

(affirmatively) when asked if the decedent’s mesothelioma was caused by his

- 30 -

J-A28024-23

occupational exposure to asbestos. See Deposition of Dr. Evan W. Alley,

12/9/2019, at 47-48. Lenox argues that Dr. Alley was not qualified to make

that diagnosis because Constantine never established Dr. Alley’s expertise as

to the properties of transite and the release of asbestos from that material in

the decedent’s workplace.

There is some merit to Lenox’s contention that Dr. Alley lacked sufficient

expertise to diagnose the medical cause of the decedent’s illness. Dr. Alley

made it clear in his testimony that his opinion regarding causation was only

“based on [the decedent’s] answers to interrogatories and the videotaped

deposition under oath, describ[ing] his exposure to asbestos and that’s what

. . . from a medical oncology perspective” practitioners in the field would use

“to make that conclusion about the cause of his disease.” Deposition of Dr.

Evan W. Alley, 11/19/2019, at 222; see also id., at 235 (admitting that the

opinion on medical cause was derived from the decedent’s deposition

testimony regarding his frequent exposure).

It was undisputed that Dr. Alley was qualified to testify as an expert in

diagnosing mesothelioma. It is also undisputed that, generally, the inhalation

of asbestos fibers is the primary cause of that disease. Dr. Alley testified at

length that he relied on the decedent’s self-reported occupational exposure to

asbestos in order to identify it as the cause of his mesothelioma.

However, Dr. Alley qualified his opinion. Unlike Dr. Steven Markowitz,

who was well-versed in the properties of transite, Dr. Alley admitted in his

- 31 -

J-A28024-23

examination that he did not know anything about that material, and that he

had no relevant experience in linking a patient’s occupational exposure to

asbestos with the development of mesothelioma. His opinion on causation

hinged solely on the veracity of the decedent’s testimony and the fact that the

inhalation of asbestos fibers may cause mesothelioma. In short, Dr. Alley did

not apply any particular methodology supporting his opinion on medical

causation, as is required by Pa.R.E. 702.

We nevertheless find that no relief is due. “An error is harmless if the

court determines that the error could not have contributed to the verdict.”

Bensinger v. Univ of Pittsburgh Med. Ctr., 98 A.3d 672, 683 n.12 (Pa.

Super. 2014). “Moreover, we will not reverse the trial court’s denial of a new

trial unless there is a clear abuse of discretion or an error of law, which

controlled the outcome of the case.” Gunn v. Grossman, 748 A.2d 1235,

1243 (Pa. Super. 2000).

Here, Constantine’s primary expert on the issue of medical causation

was Dr. Steven Markowitz, who was familiar with the properties of transite

and the release of asbestos fibers into the surrounding air when that material

is manipulated in the way described by the decedent. Dr. Markowitz testified

on those subjects at length and opined that occupational exposure to asbestos

caused the decedent’s mesothelioma. The trial court credited that testimony,

as well as the account of the decedent regarding how often transite boards

were fabricated at his workplace.

- 32 -

J-A28024-23

By contrast, Dr. Alley’s role in Constantine’s case was to provide the

basis for his diagnosis of mesothelioma and recount the decedent’s medical

treatment for that illness. He opined on medical causation in a short answer

during his testimony, and he later clarified on cross-examination that he had

no knowledge of transite’s properties.

In its 1925(a) opinion, the trial court (which sat as the finder-of-fact),

found that even if Dr. Alley’s opinion should have been precluded, it was “the

epitome of harmless error,” indicating that the opinion was given little to no

weight. See Trial Court 1925(a) Opinion, 3/2/2023, at 14. Having reviewed

all the facts of this case, as well as the applicable law, we agree with the trial

court that Dr. Alley’s opinion on causation was harmless. In light of the

additional evidence of causation that Constantine presented at trial, as well as

the minimal weight assigned to Dr. Alley’s opinion by the fact-finder, the

admission of that opinion (even if erroneous) could not have affected the

outcome of the case.

Lenox’s eighth claim is that the trial court erred in rejecting its

contention that the holding of Tooey v. AK Steel Corp., 81 A. 3d 851 (Pa.

2013), is unconstitutional, as applied in this case. According to Lenox, the

holding of Tooey “deprived Lenox of its substantive property rights without

due process of law” because it would have been shielded from Constantine’s

negligence claim but for our Supreme Court’s interpretation of Pennsylvania’s

Workers’ Compensation Act (the Act), 77 P.S. §§ 1-2710. See Appellant’s

- 33 -

J-A28024-23

Brief, at 77. The constitutionality of a statute involves a pure question of law,

subject to a de novo standard of review. See Yanakos v. UPMC, 218 A.3d

1214, 1218 n.6 (Pa. 2019).

Although Lenox cites several constitutional provisions as the basis of its

claim, the substance of its argument is that Tooey changed existing law by

extinguishing a vested or absolute defense akin to a statute of limitations or

repose. This argument implicates the “due course of law” provision of Article

I, Section 11 of the Pennsylvania Constitution. The section “is invoked when

a change in . . . legislation attempts to alter or eliminate a vested or accrued

cause of action.” Dana Holding Corp. v. Workers’ Comp. Ap. Bd.

(Smuck), 195 A.3d 635, 643 (Pa. Cmwlth. 2018). “[T]he principle also

applies to protect a party’s vested or accrued absolute defense from being

extinguished.” Id. We find no merit in Lenox’s constitutional challenge.

In Tooey, two employees developed mesothelioma decades after their

work-related exposure to asbestos products. See 81 A.3d at 856. The narrow

issue before our Supreme Court was whether the employees’ illnesses fit the

definition of “injury” under Section 301(c)(2) of the Act, such that the Act’s

exclusivity provision in Section 303(a) would not apply.

Under Section 303(a) of the Act, “liability of an employer . . . shall be

exclusive and in place of any and all other liability to such employes . . . in

any action at law or otherwise on account of any injury or death as defined in

section 301(c) . . . or occupational disease as defined in section 108.” 77 P.S.

- 34 -

J-A28024-23

§ 481(a). Section 301(c)(2) of the Act, in turn, defines the pertinent terms

as follows:

The terms “injury,” “personal injury,” and “injury arising in the

course of his employment,” as used in this act, shall include . . .

occupational disease as defined in section 108 of this act [i.e.,

77 P.S. § 27.1]: Provided, That whenever occupational

disease is the basis for compensation, for disability or

death under this act, it shall apply only to disability or

death resulting from such disease and occurring within

three hundred weeks after the last date of employment in

an occupation or industry to which he was exposed to hazards of

such disease: And provided further, That if the employe's

compensable disability has occurred within such period, his

subsequent death as a result of the disease shall likewise be

compensable.

Tooey, 81 A.3d at 858 (quoting 77 P.S. § 411(2)) (emphases in original).

The employees in Tooey argued that their illnesses did not fall under

the Act’s definition of “injury” in the above section because they first

manifested more than 300 weeks after the last date of employment. See id.

Applying the rules of statutory construction, our Supreme Court agreed with

the employees that their interpretation was reasonable, consistent with the

plain language of the statute, and in step with the intent of the legislature.

See id., at 860-65.

The Court therefore held that “the exclusivity provision of Section 303(a)

does not apply to preclude an employee from filing a common law claim

against an employer” for injuries or occupational diseases that manifest

beyond the 300-week window. Id., at 855. This interpretation of the Act

ensured that employees such as the decedent in the present case would be

permitted to sue their employers in tort for asbestos-related damages that

- 35 -

J-A28024-23

manifested more than 300 weeks after the most recent occupational exposure

to that substance. See id.

The main flaw in Lenox’s claim is that it has not identified a “vested

right” in a defense afforded by the Act. The Act itself was not amended by

the General Assembly in this regard, and our Supreme Court did not announce

a new change in the law. Rather, the Court interpreted an existing law for the

first time and determined that the definition of “injury” excludes an

occupational disease that manifests more than 300 weeks after the

employee’s last occupational exposure.

“[A] person has no vested right arising out of a judicial interpretation of

a statute so as to prevent a later interpretation from applying to the facts of

his case.” Bible v. Com., Dep't of Lab. & Indus., 696 A.2d 1149, 1154 (Pa.

1997). Here, prior to the Tooey decision, Lenox apparently presumed that

the decedent had suffered the type of injury for which there would be no

compensable remedy because his illness manifested in 2016, beyond the time-

period for seeking relief under the Act (300 weeks after the decedent’s

employment ended in 1981). Once Tooey was decided, the meaning of

“injury” was clarified, ensuring the right of the decedent and Constantine to

file suit. This in no way deprived Lenox of a vested right in a defense to a

- 36 -

J-A28024-23

cause of action in tort because such a right had never existed in the first place.

Thus, the trial court did not err in denying Lenox’s constitutional claim. 9

Lenox’s ninth claim is that the trial court erred in instructing the parties

to submit transcripts upon which the parties relied instead of having them

read into the record during trial.

We find no merit in this ground. The trial court stated in its 1925(a)

that it reviewed all relevant transcripts “with the same vigor” when assessing

the merits of Lenox’s post-trial motion. See Trial Court 1925(a) Opinion,

3/2/2023, at 17. Lenox has not specified how the trial court’s action caused

it prejudice. Nor has Lenox provided any authority that would establish its

entitlement to relief on this basis. Thus, the claim was properly denied.

Lenox’s tenth and final claim is that the trial court abused its discretion

in awarding economic loss damages in excess of the amounts given by the

parties’ damages experts. Again, no relief is warranted.

____________________________________________

9 In its Reply Brief, Lenox framed the issue as an “unforeseeable judicial

enlargement” of the Act which violates the constitutional prohibition on ex

post facto laws, violating Lenox’s due process rights. See Appellant’s Reply

Brief, at 16-20. However, this argument fails for similar reasons as those

outlined above. Before Tooey was decided, the scope of an “injury” under

the Act was at best ambiguous. It follows that, by interpreting the term, our

Supreme Court did not unforeseeably “enlarge” the Act to Lenox’s detriment

as it claims. In fact, we are bound by our Supreme Court’s determination in

Tooey that its reading of “injury” is both reasonable and in line with legislative

intent – as such, Lenox had notice of the Act’s scope from the plain language

of the statute long before Tooey was decided. Thus, Lenox’s due process

rights were not violated.

- 37 -

J-A28024-23

At trial, Lenox’s damages expert, Chad Staller, estimated that

Constantine’s total economic losses were no more than $261,214.00.

Constantine’s damages expert, Verzilli, estimated Constantine’s economic

losses (including the loss of the decedent’s earning potential and loss in

services) to be between $337,310.00 and $654,048.00. The trial court

ultimately awarded a verdict in the amount of $2,218,444.74 (excluding delay

damages).

“Judicial reduction of a jury award is appropriate only when the award

is plainly excessive and exorbitant.” Haines v. Raven Arms, 640 A.2d 367,

369 (Pa. 1994). An award of damages by the trier-of-fact “should not be

interfered with by the court, unless it clearly appears that the amount awarded

resulted from caprice, prejudice, partiality, corruption or some other improper

influence.” Ferrer v. Trustees of Univ. of Penn., 825 A.2d 591, 611 (Pa.

2002). “If the verdict bears a reasonable resemblance to the damages

proven, we will not upset it merely because we might have awarded different

damages.” McManamon v. Washko, 906 A.2d 1244, 1264 (Pa. Super.

2008).

We are unable to discern any such error in the trial court’s verdict

amounts in light of the evidence before us and the absence of any favorable

legal authority cited by Lenox. Verzilli’s calculations only concerned the

decedent’s lost earning capacity and services, and the high end of the estimate

- 38 -

J-A28024-23

was $654,048.00. But this was only one category of the damages that were

available to Constantine under the Wrongful Death Act and the Survival Act.

The Wrongful Death Act permits the recovery of “the value of the

decedent’s life to the family, as well as the expenses caused to the family by

reason of the death.” Slaseman v. Myers, 455 A.2d 1213, 1218 (Pa. Super.

1983); see also 42 Pa.C.S.A. § 8301; In re Estate of Coleman, 772 A.2d

1026, 1027 (Pa. Super. 2001).

The Survival Act (42 Pa.C.S.A. § 8303) permits a decedent’s estate to

recover the damages sustained by the decedent prior to his death – “survival

damages are essentially those for pain and suffering endured by the decedent

between the time of injury and death.” Amato v. Bell & Gossett, 116 A.3d

607, 625 (Pa. Super. 2015). “The measure of damages awarded . . . include

the decedent’s pain and suffering, the loss of gross earning power from the

date of injury until death, and the loss of his earning power – less personal

maintenance expenses, from the time of death through his estimated life

span.” Coleman, 772 A.2d at 1027 (quoting Kiser v. Schulte, 648 A.2d 1,

4 (Pa. 1994)). A loss of consortium claim “is intended to compensate one for

the loss of services, society, and conjugal affection of one’s spouse occasioned

by an injury to that spouse.” Amato, 116 A.3d at 626.

Here, the trial court specified that the decedent’s wife was awarded

$700,000.00 in damages for her loss of consortium; the decedent’s wife and

children were awarded $700,000.00 pursuant to the Wrongful Death Act; and

- 39 -

J-A28024-23

the decedent’s estate was awarded $818,444.74 pursuant to the Survival Act.

Other than point to the conflicting estimates between the parties’ experts

regarding the decedent’s earning potential and lost wages, Lenox has not

shown how these verdict amounts resulted from caprice, prejudice, partiality,

corruption or some other improper influence. Thus, no relief is due on this

claim.10

We now address the issues raised in Constantine’s cross-appeal. After

the verdict was entered, Constantine filed a petition for delay damages,

seeking a total amount of $392,896.41. The trial court granted delay damages

in the amount of $109,152.02, and that portion of the award is not subject to

our present review.

At issue now, rather, is Constantine’s challenge to the part of the trial

court’s order denying the remaining amount she sought, $283,744.39.

Specifically, Constantine seeks to recover delay damages she claims were

accrued during the following time periods:

 June 20, 2018, to December 31, 2018 ($64,852.26)

 December 11, 2019, to November 21, 2020 ($121,522.18)

____________________________________________

10 We add that it is unclear whether Lenox preserved this ground for appellate

review. The issue of the verdict amounts raised in Lenox’s brief does not

appear in its post-trial motion, and Lenox makes no reference to a timely

motion for remittitur before the trial court. Accordingly, the issue is both

meritless and waived. See Rettger v. UPMC Shadyside, 991 A.2d 915, 932

(Pa. Super. 2010) (finding that challenge to verdict amount was preserved by

motion for remittitur, but later waived where appellant had not cited any

relevant authority for a reduced award of damages in its brief).

- 40 -

J-A28024-23

 January 1, 2021, to May 13, 2022 ($97,369.95)

See Appellees’ Brief, at 5-6.

Under Pa.R.Civ.P. 238, a plaintiff may be entitled to recover damages

for delay in addition to the amount of compensatory damages awarded against

each defendant found to be liable to the plaintiff in the verdict of the fact-

finder. See Pa.R.Civ.P. 238(a)(1). This rule serves several functions: to

compensate plaintiffs for money that would have been earned if it had been

promptly received; to encourage settlements; and to prevent defendants from

unjustly enriching themselves with the accrual of interest on funds which

rightfully belong to plaintiffs. See Sopko v. Murray, 947 A.2d 1256, 1258

(Pa. Super. 2008).

Delay damages begin to accrue a year after the date on which “original

process was first served in the action up to the date of the award, verdict, or

decision.” Pa.R.Civ.P. 238(a)(2). However, delay damages will not accrue

after a defendant has made a written settlement offer, “provided that the

plaintiff obtained a recovery which did not exceed the amount described in

subdivision (b)(3)[.]” Pa.R.Civ.P. 238(b)(1)(i).

Subsection (b)(3) defines this threshold amount as “125 percent of

either the specified sum or the cost of the structured settlement plus any cash

payment to the plaintiff.” Pa.R.Civ.P. 238(b)(3). Of more relevance here

(because Lenox did not make a qualifying settlement offer), delay damages

- 41 -

J-A28024-23

are not recoverable for the time “during which the plaintiff caused delay

of the trial.” Pa.R.Civ.P. 238(b)(1)(ii) (emphasis added).11

This Court has strictly interpreted subsection (b)(1), remarking that it

enumerates “two, and only two, periods of time to be excluded from delay

damages[.]” King v. SEPTA, 557 A.2d 11, 12–13 (Pa. Super. 1989) (en

banc). Crucially, where a period of delay was not caused by either party, the

period may not be excluded – “The drafters of the new rule ‘have not allowed

for the exclusion of periods of delay not caused by either party.’” King, 557

A.2d at 13 (quoting Miller v. Wise Business Forms, Inc., 553 A.2d 443,

446 (Pa. Super. 1989)) (emphasis in original).

Examples of delays that may be excludable are those that result from a

plaintiff’s lack of representation, see Gunn v. Grossman, 748 A.2d 1235 (Pa.

Super. 2000), or a plaintiff’s request for a stay or a continuance in the absence

of reasonable diligence, see Tindall v. Friedman, 970 A.2d 1159, 1178 (Pa.

Super. 2009). Conversely, administrative delays imposed by the court are

not to be attributed to a plaintiff and excluded for purposes of Rule 238. See

Cruz v. Northeastern Hosp., 801 A.2d 602, 613 (Pa. Super. 2002).

____________________________________________

11 Although Lenox, in its briefing, repeatedly refers to settlement offers it

made to Constantine, Lenox does not assert that any such offers were of a

sufficient amount to satisfy the requirements of Pa.R.Civ.P. 238(b)(1)(i).

Additionally, the trial court did not find that Lenox made any offer that would

justify the exclusion of time from the delay damages calculation.

- 42 -

J-A28024-23

“It is the defendant who bears the burden of proof when opposing the

imposition of delay damages and may do so by establishing that . . . the

plaintiff was responsible for specified periods of delay.” Sopko, 947 A.2d at

1258. A trial court’s interpretations of the procedural rules are subject to a

de novo standard of review. See Marlette v. State Farm Mut. Auto. Ins.

Co., 57 A.3d 1224, 1228 (Pa. 2012). To the extent a ruling on delay damages

is based on factual findings or weighing of the evidence, the determination

may only be overturned to correct an abuse of discretion, which includes a

misapplication of law “or such lack of support [in the record] as to be clearly

erroneous.” Krebs v. United Refining Co. of Penn., 893 A.2d 776, 786 (Pa.

Super. 2006) (quoting Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998)).

We first evaluate the excluded period of June 20, 2018, to December

31, 2018. The trial court did not give its reasons for excluding this period

from the time in which delay damages would accrue. More importantly, we

are unable to discern from the facts and controlling authority on this issue

how the period could possibly be excludable.

Lenox was served with original process on June 20, 2017, and a verdict

was entered in Constantine’s favor on May 13, 2022. Accordingly, under Rule

238, and barring any applicable exceptions, Constantine was entitled to delay

damages accrued from June 20, 2018 (a year after original process was

served) and the date of the verdict. See Pa.R.Civ.P. 238(a)(2).

- 43 -

J-A28024-23

Lenox argues that the trial court’s ruling as to the period (June 20, 2018,

to December 31, 2018) was proper because it resulted from Constantine’s

efforts to name Esterline as a defendant in the action. On December 28, 2017,

the trial court had granted Constantine leave to file an amended complaint

naming Esterline as a defendant; an amended complaint, including Esterline,

was filed about four months later, on April 6, 2018.

However, we do not see how Lenox has carried its burden of proving

that Constantine delayed the trial due to the proceedings leading to Esterline

being added to the case. As Constantine has pointed out, delay damages did

not even begin to accrue until after she filed her amended complaint on April

6, 2018. Further, the case was not initially listed for trial until July 26, 2018,

at which time the trial date of March 4, 2019, was set.

The record does not at all establish how the timing of Constantine’s

amended complaint affected the date of the trial. Thus, the trial court abused

its discretion in excluding this period (June 20, 2018, to December 31, 2018)

from the calculation of delay damages because it was clearly erroneous and a

misapplication of Rule 238.

We next evaluate the period of December 11, 2019, to November

21, 2020. Again, the trial court gave no reason for excluding this period in

its 1925(a) opinion. And yet again, the above facts and authorities do not

support the exclusion or demonstrate that Lenox carried its burden of proving

that this period should be excluded.

- 44 -

J-A28024-23

Lenox argues that the trial court’s exclusion of this time from the

calculation was proper because it resulted from Constantine’s attempts to

challenge Esterline’s dismissal by way of an interlocutory appeal, leading to

the placement of the case into a deferred status.

After Esterline was added to the case, it filed a motion in limine on

December 2, 2019, to exclude all evidence relating to Constantine’s attempt

to pierce the corporate veil between Esterline and Lenox. The trial court

granted the motion orally on December 10, 2019. The next day, on December

11, 2019, Esterline was dismissed from the case by written order, and

Constantine began seeking an interlocutory appeal of the ruling. On January

9, 2020, Constantine filed her petition with this Court. Interlocutory review

was denied, and the trial court received this Court’s order denying review on

March 3, 2020.

Less than two weeks later, on March 16, 2020, our Supreme Court

declared a statewide judicial emergency “to safeguard the health and safety

of court personnel, court users, and members of the public due to the

circumstances surrounding the COVID-19 virus.” In re: General Statewide

Judicial Emergency, 228 A.3d 1283, 1283 (Pa. 2020). An order entered by

the Court two days later directed the suspension of all judicial business in the

Commonwealth. See id. The Court of Common Pleas of Philadelphia County

entered a similar order on March 17, 2020, and no trials were held in the

county pursuant to those orders. See Administrative Order No. 9 of 2020.

- 45 -

J-A28024-23

It was not until November 21, 2020, while the emergency orders were

still in effect,12 that the trial court removed the present case from deferred

status. The record does not make it clear why the trial court waited until that

particular date to do so – the trial court does not explain its action in the

1925(a) opinion, and Lenox’s brief is equally silent in that regard.

As to this period (December 11, 2019, to November 21, 2020), we find

nothing in the record or in the applicable law that supports the trial court’s

ruling that delay damages did not accrue. Constantine promptly began

seeking to file an interlocutory appeal as soon as the trial court made a

dispositive ruling on the piercing of Esterline’s corporate veil. The time it took

for this Court to decide the appealability of the trial court’s order, as well as

the eight months it took for the trial court to remove the case from deferred

status, were plainly not attributable to Constantine.

Further, the delays between March 16, 2020, and November 21, 2020,

were attributable to judicial emergency orders which prevented any trials from

being held. This Court held in Getting v. Mark Sales & Leasing, Inc., 274

A.3d 1251, 1261-62 (Pa. Super. 2022), that delay damages accrued during

that time, as they resulted from administrative decisions and not the actions

of plaintiffs. Thus, the trial court erred as a matter of law in excluding the

____________________________________________

12 The judicial emergency was extended in Philadelphia County by a series of

orders, with the final extension continuing until October 1, 2021.

- 46 -

J-A28024-23

period from December 11, 2019, to November 21, 2020, from the calculation

of delay damages.13

Lastly, we evaluate the exclusion of the period between January 1,

2021, and May 13, 2022 (the day the verdict was entered).14 In its 1925(a)

opinion, the trial court emphasized that the trial had been delayed by

emergency court closures resulting from the global COVID-19 pandemic. See

Trial Court 1925(a) Opinion, 3/2/2023, at 18. The trial court reasoned that it

would be “unjust” for damages to accrue against Lenox because the delays

were not its fault. See id. The trial court stated further that, “[i]t is clear

from a reading of the rule [Pa.R.Civ.P. 238] that the Supreme Court intended

to except delays that Defendants were not responsible for.” Id.

The trial court’s rationale is problematic. Its analysis of the delay

damages issue aptly begins with references to Rule 238, as well as our opinion

in Getting, 274 A.3d 1251, where this Court held that COVID-related

administrative delays to a trial are not excludable from the calculation of delay

damages. The trial court then acknowledged that Constantine did not cause

such delays here. See Trial Court 1925(a) Opinion, 3/2/2023, at 18.

____________________________________________

13 Neither the trial court, nor Lenox, have specifically accounted for the period

between March 3, 2020, and March 16, 2020, and we find, for the reasons

outlined above, that Lenox did not carry its burden of proving that Constantine

delayed the proceedings during that span.

14 The period between November 21, 2020 and January 1, 2021, is not in

dispute.

- 47 -

J-A28024-23

It seems that the trial court nevertheless declined to apply Getting

based on its assumption that the unique challenges posed by the COVID

pandemic could not have been anticipated when our Supreme Court drafted

Rule 238. See id. But regardless of that implicit logic, the trial court’s ruling

was erroneous as a matter of law, as our mandate in Getting was directly

controlling.

Court business was suspended in Philadelphia County due to a judicial

emergency from March 17, 2020, until October 1, 2021. The trial in this case

took place from February 14 to February 16, 2022, and the verdict in this case

was entered on May 13, 2022. The record does not show that Constantine

was responsible for any delays at the relevant times in 2021 or 2022. Rather,

it was only established that the trial was delayed by the administrative action

taken by the court in response to the pandemic. Under Getting, the period

of delay could not be excluded from the calculation of delay damages pursuant

to Rule 238.

The trial court therefore erred in two respects – first, in disregarding our

mandate in Getting, and second, in misapplying Rule 238, which does not

contemplate whether a defendant caused a delay. See Pa.R.Civ.P. 238. Thus,

as to the delays caused by COVID-related closures, the trial court abused its

- 48 -

J-A28024-23

discretion and erred as a matter of law in excluding that time from the delay

damages calculation.15

Order on post-trial motion entered on September 29, 2022, affirmed.

Order on delay damages entered on October 7, 2022, affirmed in part,

reversed in part. Case remanded for further proceedings consistent with this

opinion. Jurisdiction relinquished.

Date: 9/17/2024

____________________________________________

15 We briefly respond to Lenox’s argument that Constantine is responsible for

the COVID-related delays in the case because, but for the earlier timing of her

amended complaint and attempt to file an interlocutory appeal, the case would

have been resolved before the judicial emergency began. This ground for

affirmance is moot due to our determination that those earlier periods cannot

be excluded from the Rule 238 calculation. But even if Lenox’s claim were not

moot, it would lack merit due to being entirely speculative, inconsistent with

Rule 238, and contrary to our holding in Getting.

- 49 -